Pros and Cons of Hacking Back

Imagine: You are the CEO of a multi-million dollar company. Aware of the current cyber climate, you budgeted out a large chunk of your company’s money for cybersecurity. This morning you received a phone call from the head of security alerting you to a cyber breach. The good news is that your security team was able to discover the breach before a lot of damage could be done, and they were able to determine the source. The head of security just told you that he has the ability to perform a counter-attack against the cybercriminals that will shut down their equipment, preventing further damager to your network. What do you do?

Well, your primary legal option is to call law enforcement and let them take over. Unfortunately, law enforcement does not have jurisdiction where a lot of these cybercriminals operate and local police are often uncooperative. Law enforcement is also constrained by the law: they can investigate but they do not have the authorization to impose punishment on their own.

This dilemma has led many to lobby for permission to “hackback” against cybercriminals on their own. The Guardian reported on the demand for this alternative as well as legal obstacles and ramifications. According to the report, senior banking officials, frustrated by sustained hacking campaigns from attackers in other countries, lobbied at February’s Davos forum for permission to track down hackers’ computers and disable them. The former director of national intelligence on the Obama administration, Dennis Blair, considered explicitly authorizing cyber strikeback operations in a 2013 report he co-authored from the US Commission on the Theft of American Intellectual Property.

So what is standing in the way of companies taking matters into their own hands?

The Law

The law forbids hacking, even in self-defense. The report mentioned the Computer Misuse Act in the UK and the Computer Fraud and Abuse Act in the US as examples of legal roadblocks preventing private hackback operations.

The current protocol is to contact law enforcement when you have been hacked. However, as highlighted above, there are problems with this protocol: law enforcement seldom have jurisdiction, local police are often uncooperative, and even when law enforcement has jurisdiction, their role is investigatory.

The report highlighted additional concerns that come with information sharing:

Today if there is an attack, there’s a reluctance to share that information because it could be used against that institution in a civil suit.

Due to the above issues, the desire for legal reform in this area is understandable. However, would legal permission to hackback solve the problem or create new ones?

Slippery Slope if Hacking Back Allowed:

According to the report, if private cyber counter measures were allowed, there could be significant unintended consequences. The main problem is attribution. Jon Ramsey, chief technology officer at Dell’s security unit, warns:

Without accurate traceback there is a significant and substantial risk that organizations start attacking legitimate organizations. Where would this end? It would cascade out of control.

Unfortunately, this slippery slope concept has not stopped financial institutions. In December, Bloomberg reported that banks had considered using offshore contractors to carry out a counter-attack, after a widespread attack on the US banking community that US officials believed was mounted from within Iran.

So what is the solution to this growing problem?

Potential Solutions

The report examines potential solutions through the lens of several experts in the field. John Carson, the executive vice president of the technology policy division of the US Financial Services Round Table, argues that banks should simply share information about hacks on their systems with the government to help prepare an industry-wide response. According to the report, legislators have introduced two bills that would effectively prevent legal reprisal for information sharing.

Former director of national intelligence Dennis Blair raised the question of whether a government would consider refusing to prosecute law enforcement in the event of a cyber strikeback. According to the report, Blair remains convinced that strikebacks are a useful deterrent and he is “less concerned with the legal debate than he is with the fact that western firms are being fleeced by shadowy cyber-crooks half a world away.”

A solution is necessary, and according to the report, the stakes are high:

At stake are not only millions of dollars in intellectual property, but also elements of critical national infrastructure, and even free speech.

Professor William Snyder

Ryan D. White

Ryan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic.

Christopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law.

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review.

Jennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.)